ADDRESS  OF  THE  CENTRAL  EXECUTIVE  COMMITTEE. 


*« 


j{    To  ilie  People  of  North  Carolina  : 

The   'Central   Executive  Committee  of 

j!  the  'Democratic-Conservative    Party    feel 
authorized    and    called  upon  to  address 

j!  the  people  at  this  time,  upon  matters  of 
grave  public  concern,  and  they  venture 
to  trust  that  what  they  say  will  receive 
the  candid  consideration  of  every  citizen. 
The  Legislature  at  its  late  session,  made 
provision  by  which  to  enable  the  people  of 
the  State  on  the  first  Thursday  in  August 
next,  by  popular  vote,  to  call  a  Conven- 
tion and  elect  delegates  to  the  same,  for 
the  purpose  of  amending  the  State  Con- 
stitution. The  propriety  and  wisdom  of 
this  action  cannot  be  seriously  questioned 
when  we  consider  the  causes  that  gave 
rise  to  it.         . 

The  defects  in  the  present  Constitution, 
are  so  many  and  so  manifest,  that  almost 
every  person  of  ordinary  intelligence, 
without  reference  to  party  affiliations, 
concedes  that  it  needs  to  be  materially 
altered  and  amended. 

The  organic  law  of  the  State  should  be 
so  plain,  precise,  harmonious  and  logical 
in  its  form  and  terms  as  that  the  plainest 
mind  may  understand  it,  and  as  to  leave 
as  little  as  possible  to  inference  and  legis- 
lative and  judicial  construction.  It  is  in- 
tended and  ought  to  be  the  bulwark  of 
the  peoples'  rights  and  liberties.  To  the 
extent,  that  any  of  its  provisions  are  left 
to  inference  or  constructions,  to  that  ex- 
tent are  the  rights  of  the  people  and  often 
their  most  valuable  rights,  left  to  the 
whim  andcaprcice  of  their  Executive,  Judi- 
cial aud  Legislative  officers — moved  some- 
times by  the  voice  and  influence  of  party 
I  zeal  and  strife,  at  others,  by  corrupt  con- 
siderations, and  yet  others  by  ignorance 
and  stupidity.  » 

Our  present  Constitution  is  flagrantly 
liable  to  such  objections ;  it  is  loose,  illogi- 
cal, contradictory  and  absurd  in  many  of 
its  most  material  provisions,  so  much  so, 
that  a  wise  and  learned  lawyer  has  said  of 
it  upon  his  sworn  opinion,  that  it  "  is  a 
medley  of  confusons  and  contradictions. " 


The  compass  of  this  address  will  not  allow 
us  to  cite  but  one  or  two  illustrations  of  the 
truth  of  what  we  say. 

The  Constitution  requires  in  one  section 
that  the  Legislature  shall  provide  by  ade- 
quate taxation  for  the  payment  of  the  in- 
terest on  the  public  debt  and  the  debt 
itself.  In  another  section  it  provides  that 
the  capitation  tax  shall  not  exceed  two 
dollars  on  the  head  for  State  and  county 
purposes,  and  that  the  tax  on  three  hun- 
dred dollars  worth  of  property  shall  not 
exceed  the  tax  on  the  head.  If  these 
provisions  are  to  be  taken  according  to 
their  terms  and  any  reasonable  construc- 
tion, an  impossibility  is  required,  because 
at  such  rates  of  taxation,  the  whole  prop- 
erty of  the  State,  together  with  the  capi- 
tation tax,  is  not  sufficient  to  raise  reve- 
nue sufficient  to  pay  the  interest  of  the 
public  debt  recognized  by  the  very  Con- 
vention that  framed  the  Constitution,  to 
say  nothing  of  the  ordinary  expenses  of 
government. 

Because  of  this  absurdity,  our  Supreme 
Court  have  held  that  the  last  provision 
above  mentioned  did  not  apply  to  the 
debt  of  the  State  as  it  existed  at  the  adop- 
tion of  the  Constitution:  The  Court  was 
obliged  to  make  some  decision  ;  they  made 
this,  and  thus  virtually  made  one  of  the 
most  important  provisions  in  the  Consti- 
tution, which  turns  the  Legislature  loose 
on  the  people. 

Another  section  provides,  that  "the 
Superior  Courts  of  the  State  shall  be  at  all 
times  open  for  the  transaction  of  all  busi- 
ness within  their  jurisdiction,  except  the 
trial  of  issues  of  fact  rearriring  a  jury. 
Another  section  provides  ror  twelve  Su- 
perior Court  Judges,  each  of  them  for  a 
circuit  embracing  about  eight  counties, — 
so  that  it  is  physically  impossible  to  keep 
the  courts  open,  unless  the  Judge  shall 
have  deputies,  an  unheard  of  thing  in  all 
systems  of  judicature,  and  no  provision  is 
made  for  such  deputies. 

This  absurdity  had  to  be  met ;  and  the 
Supreme  Court  was  driven  to  a  construe- 


1 


♦  tion,  which  virtually  strikes  out  a  material 
provision  of  the  Constitution  and  one  that 
lies  at  the  root  of  our  present  judicial 
system.  While  the  Superior  Courts  are 
required  by  the  Constitution  to  be  open 
at  all  times  for  all  business,  except  the  trial 
of  issues  of  fact  by  a  jury,  an  act  of  the 
Legislature  providing  that  certain  busi- 
ness, which  is  really  the  larger  and  more 
important  part  of  the  business  of  the  Su- 
perior Courts,  shall  be  transacted  only  at 
the  semi-annual  terms,  is  held  by  our  Su- 
preme Court  to  be  valid  and  to  harmonize 
with  the  Constitution. 

These  are  but  examples  of  the  con- 
tradictions and  absurdities  that  abound 
v^  in  the  Constitution.  So  great  are  the 
difficulties  that  arise  in  the  practi- 
cal working  of  the  judicial  system  in- 
augurated under  the  Constitution  that  it  is 
not  surprising  that  there  is  to  be  found  in 
the  recent  decision  of  the  Supreme  Court, 
a  distinct  recognition  of  the  necessity  of 
"judicial  legislation" — a  doctrine  hitherto 
unheard  of  in  the  jurisprudence  of  the 
State,  and  one  that  seems  to  us  at  variance 
with  the' theory  of  republican  government 
in  which  the  functions  of  the  Executive, 
Judicial  and  Legislative  departments  are 
supposed  to  be  distinct  and  separate. 

It  is  not  three  years  since  the  new  con- 
stitution went  into  operation,  yet  many 
suits  have  already  been  brought  and  prose- 
cuted through  the  several  courts,with  much 
expense,  to  ascertain  the  rights  of  the  citi- 
zen under  its  conflicting  provisions ;  and 
we  have  seen  the  Supreme  Court,  in  several 
instances,  compelled  virtually  to  make  sec- 
tions of  the  Constitution,  in  order  to  recon- 
cile irreconcilable  provisions.  Whatever 
may  be  the  character  and  learning  of  the 
judiciary,  it  is  dangerous  in  the  extreme, 
that  the  most  valuable  rights  of  the  citi- 
zen should  depend  upon  an  organic  law, 
so  uncertain  and  conflicting  in  its  terms  as 
that  five  men  must  have  the  power  by  con- 
structionso  to  change  and  amend  it.  This 
objection  alone  is  sufficient  to  warrant  the 
prompt  action  of  the  people.  The  reports 
of  the  Supreme  Court  are  accessible  to  all, 
and  fully  sustain  what  we  have  said  on 
this  subject. 

The  Constitution  has  completely  over- 
turned and  abolished  our  old  system  of 
jurisprudence,  and  introduced  a  new  one, 
in  no  sense  adapted  to  the  wants,  habij» 
tastes,  convenience  or  economy  of  our  peo- 


ple, and  it  may  be  said  of  it  most  truly, 
that  it  is  loose,  uncertain  and  illogical,  giv- 
ing rise  to  interminable  litigation  and  end- 
less .judicial  legislation.  Fully  one-third 
of  the  cases  that  go  before  the  Supreme 
Court  go  there  upon  questions  of  practice 
and  construction,  growing  out  of  the 
"  Code,"  and  which  bring  justice  and  sat- 
isfaction to  nobody.  This  is  not  only  our 
experience,  but  it  is  the  experience  of  New 
York  and  other  States  where  it  prevails. 

It  may  be  further  suid  of  it,  that  it  is 
corrupting  in  its  tendencies  to  the  Bench, 
the  Bar  and  the  officers  of  Court.  Under  it, 
much  of  #the  business  is  done  privately  at 
chambers  and  in  the  clerk's  office  in  the 
absence  of  opposing  parties  and  counsel — 
the  amplest  opportunity  is  afforded  for  cor- 
rupting the  Judges,  the  officers  of  Court 
and  counsel^  and  our  short  experience  har- 
monizes with  that  in  other  States  under 
"  the  Code,"  and  proves  the  truth  and 
force  of  this  objection. 
y  The  township  system  in  each  county  is 
exceedingly  cumbersome  and  expensive, 
and  quite  as  complicated,  and  gives  rise  to 
great  confusion  and  expensive  litigation. 
A  great  number  of  officers  are  necessary, 
and  these  must  be  paid  reasonable  com- 
pensation, else  the  county  machinery  must 
cease  to  work  and  thus  give  rise  to  intermin- 
able and  intolerable  confusion.  This  sys- 
tem does  not  suit  the  necessities  and  wants 
of  our  people — it  is  not  needed  by  them, 
however  well  it  may  be  adapted  to  a  dense- 
ly populated  and  wealthy  country  like 
New  England. 

*  The  provisions  of  the  Constitution  in 
reference  to  raising  revenue  and  taxation 
are  in  the  most  conflicting  and  confused 
condition.  Already  they  have  given  rise 
to  the  most  serious  and  expensive  litiga- 
tion, and  will  continue  to  do  so  if  not 
amended  and  reformed.  Even  the  de- 
cisions made  by  the  Court  on  these  sub- 
jects are  often  unsatisfactory — the  judges 
differing  widely  in*  their  opinions  from 
each  oth^r. 

There  are  other  serious  objections  that 
we  need  not  now"  point  out,  but 
which,  are  worthy  the  most  serious 
consideration  of  every  citizen  of  the  State, 
the  remedy  for  all  which  is  in  and  through 
a  Convention  of  true-hearted  native  North 
Carohnians.  Our  Constitution  would  not 
be  what  it  is  now  if  our  own  people  had 
framed  it.    It  is  the  handiwork,  in  a  great 


measure,  of  ignorant,  unprincipled  adven- 
turers, who  had  not  the  inclination  to  con- 
sult the  wants,  tastes,  and  necessities  of 
the  people,  nor  the  capacity  to  put  together 
disjointed  parts,  and  fragments  taken 
from  other  State  Constitutions.  It  is  the 
shame  of  every  North  Carolinian,  white 
and  black,  that  adventurers  and  strangers, 
feeling  no  interest  in  us,  have  made  our  Con- 
stitution, and  such  an  absurdity  as  it  is ! 
However  we  may  differ  upon  questions  of 
politics,  let  the  good  and  true  of  all  parties 
and  colors  stand  together  as  North  Caroli- 
nians to  make  a  Constitution  by  and 
through  a  Convention  of  true-hearted 
North  Carolinians,  and  such  a  one  as  will 
be  worthy  the  descendents  of  a  noble  an- 
cestry. 

V  The  method  adopted  for  calling  the 
Convention  is  eminently  proper — indeed, 
we  undertake  to  say  that  it  is  the  only  one 
that  fully  harmonizes  with  the  great  dem- 
ocratic principle  underlying  American 
government — the  right  of  the  people  to 
rule,  and  especially  to  make,  amend  and 
control  their  organic  lawTjThe  method 
adopted  is  founded  upon  fne  great  princi- 
ple of  popular  government  common  to  all 
the  States  of  the  Union,  and  is  in  perfect 
harmony  with  every  provision,  as  well  as 
the  spirit  of  our  present  State  Constitution. 
There  is  no  provision  in  the  Constitution 
which,  in  terms  or  by  any  reasonable  im- 
plication in  the  slightest  degree,  abridges 
or  impairs  the  right  of'  the  people  of  the 
State  to  alter  or  amend  it,  or  call  a  Con- 
vention for  that  purpose.  There  is  no 
word  of  limitation  on  their  power  in  any 
of  these  respects,  and  although  it  was  not 
necessary  that  they  should  do  so,  they 
have  been  careful  to  provide  in  terms 
their  purpose  not  to  part  with  such  pow- 
ers ;  for  it  is  provided  in  our  Bill  of 
Rights  in  these  words : 

"  Sec.  2.  That  all  political  power  is  vested 
in  and  derived  from  the  people;  all  govern- 
ment, of  right  originates  from  the  people,  is 
founded  upon  their  will  only,  and  is  insti- 
tuted solely  for  the  good  of  the  whole." 

Sec.  3.  That  the  people  of  this  State  have 
the  inherent,  sole  and,  exclusive  right  of  regu- 
lating the  internal  government  and  police 
thereof  and  of  altering  and  abolishing  their 
constitution  and  form  of  government,  when- 
ever it  may  be  necessary  to  their  safety  and 
happiness;  but  every  such  right  should  be 
exercised  in  pursuance  of  law  consistently 


with  the  constitution  of  the  United  States." 
Sec.  37.  This  enumeration  of  rights  shall 
not  be  construed  to  impair  or  deny  others, 
retained  by  the  people  ;  and  all  powers,  not 
hevein  delegated,  remain  with  the  people." 
V' The  only  limitation  in  the  Constitution 
in  reference  to  calling  a  Convention  is  im- 
posed on  the  Legislature — that  body  shall 
not  call  a  «  onvention  unless  by  the  con- 
currence of  two-thirds  of  the  votes  of  all  its 
members — but  that  body  may  in  the  ordi- 
nary way  of  legislation,  provide  means  by 
and  through  which  the  people  may,  at  any 
time,  call  a  Convention ;  the  Legislature 
has  such  power  by  the  whole  tenor  and 
spirit  of  the  Constitution  as  well  as  by  the 
express  terms  quoted  abover'jfThe  people 
may  do  what  the  Legislature  cannot — the 
people  limited  the  powers  qf  the  Legislature 
about  calling  a  Convention — they  did  not 
undertake  to  limit  themselves,  and  it  may 
well  be  questioned  whether,  if  they  wished, 
they  could  do  so,  in  such  way  as  to  bind 
the  present  generation,  much  less  any  suc- 
ceeding one.  -But  in  addition  to  the  plain 
meaning  of  the  Constitution  and  the  grand 
principle  of  American  government,  under- 
lying it,  to  which  we  have  adverted,  the 
people  of  North  Carolina  have,  time  after 
time,  sanctioned  such  a  method  of  calling 
a  Convention — they  have  by  their  'practice 
not  only  recognized  the  doctrine  above 
mentioned,  but  have  acted  upon  it  and 
created  precedents  that  have  been  acted 
upon  in  most,  if  not  all,  the  States  of  the 
Union. 

It  is  sometimes  said  that  in  1861  the 
Legislature  passed  a  similar  Convention 
act  by  a  two-thirds  vote  of  the  whole  Leg- 
islature— but  that  was  then  done  out  of 
abundant  caution  and  not  for  the  purpose 
of  amending  the  Constitution,  and  was  the 
only  instance  of  such  action,  and  such  a 
vote  was  then  unnecessary. 

The  plan  adopted  is  so  manifestly  in 
accordance  with  every  principle  of  the 
Constitution  and  the  doctrines  of  popular 
government,  that  we  can  scarcely  credit 
the  sincerity  of  those  who  suggest  the  con- 
trary. 

y  The  act  providing  for  calling  a  Conven- 
tion, wisely-  provides  that  it,  if  called, 
shall  not  have  power  to  interfere  with  the 
Homestead  provision  of  the  present  Con- 
stitution, nor  with  the  political  and  civil 
rights  of  the  colored  people,  nor  with  the 
provision  for  amechanic's  and  laborer's  lien: 


This  expression  in  favor  of  the  colored 
people,  ought  to  satisfy  them  tlrat  there  is 
no  purpose  to  disturb  their  rights,  but  it 
may  be  as  well  for  them  to  understand, 
if  they  do  not,  that'  their  political  and 
civil  rights  are  established  by  the  Consti- 
tution of  the  United  States,  and  the  pro- 
posed Convention  would  have  no  power 
to  disturb  them. 

There  can  be  no  reasonable  objection  to 
a  laborer's  lein — he  is  entitled  to  it  upon 
every  principle  (  of  good  government  as 
well  as  the  spirit  of  the  scriptural  maxim, 
"  the  laborer  is  worthy  of  his  hire.  " 

The  propriety  and  necessity  of  a  Home- 
stead for  every  family  in  the  land,  is  rapid- 
ly becoming  the  settled  policy  of  the 
American  people  as  well  as  the  people  of 
this  State.  It  is  wise,  just  and  humane, 
and  rests  not  only  on  these  grounds,  but 
on  the  further  grouryi  of  sound  public  pol- 
icy. The  State  and  society  have  a  direct 
interest  in  the  proper  rearing  and  culture 
of  every  child  within  its  lsorders ;  it  is 
matter  of  high  moment  that  every  child 
shall  have  a  home,  to  the  end,  he  may  not 
become  a  wanderer,  a  beggar  and  often  a 
vagabond  and  criminal.  Every  family 
should  have  a  home — it  gives  dignity  and 
fixedness  to  citizenship  and  stimulates 
parents  and  children  to  honest  and  honor- 
able efforts  to  educate,  elevate  and  fit  them- 
selves for  society.  This  humane  policy  has 
the  sanction  of  the  great  mass  of  the  people 
and  it  is  fixed  not  only  in  the  Constitution, 
but  by  a  solemn  decision  of  our  Supreme 
Court,  which  is  binding  as  a  high  judicial 
precedent  on  all  future  courts  and  judges. 
V  It  is  worth  while  here  to  bring  to  the 
attention  of  the  people  the  fact  that  wick- 
ed and  designing  factionists  in  this  State 
and  political  demagogues  out  of  it.  for  the 
purpose  of  securing  and  promoting  their 
personal  and  political  ascendency  have 
been  and  are  now  working  to  produce  the 
impression,  here  and  elsewhere,  and  espe- 
cially among  the  people  of  the  Northern 
States,  that  the  great  mass  of  our.  white 
people  are  hostile  to  the  negro  race  and 
the  Federal  government,  and  desire  to 
overthrow  the  latter — they  persistently 
make  such  false  and  scandalous  represen- 
tations and  undertake,  we  regret  to  say 
with  some  success,  to  sustain  their  allega- 
tions by  falsely  attributing  to  political 
motives  every  crime  and  outrage  perpetra- 
te^ in  fuv,™*,  and  hv  persons  in  disguise? 


Such  offences  they  greatly  magnify  in 
number  and  character,  while  they  make  no 
diligent  or  reasonable  efforts  to  bring  the 
offenders  to  justice,  although  they  and 
their  friends  for  the  most  part,  control  the 
whole  machinery  of  government  whereby 
to  bring  offenders  to  merited  punishment. 
Indeed,  there  is  much  reason  to  believe 
that  in  many  instances,  they  have  directly 
or  indirectly,  procured  the  perpetration  of 
such  outrages  in  order  to  stir  up  civil 
strife  to  serve  political  purposes.  In  re- 
peated instances  it  has  been  made  to  ap- 
pear by  positive  proof,  that  their  political 
associates,  black  and  white,  have  perpetra- 
ted such  offences.  And  facts  and  circum- 
stances within  our  knowledge  leave  no 
doubt  on  our  minds,  that  these  desparate 
political  adventurers  have,  by  preconcert, 
arranged  to  bring  upon  the  people  the 
calamity  of  Federal  military  rule  and  a' 
suspension  of  the  privilege  of  the  writ 
of  habeas  corpus,  oh  purpose  to  pro- 
duce terror  among  the  people,  and 
thus  deter  them  from  suppressing 
through  the  ballot  ;  box  in  Au- ' 
gUst  next,  the  radical  misrule,  extrava- 
gance, oppression  and  intolerable  taxa- 
tion which  have  blighted  the  remaining 
prospects  of  their  future  prosperity.  The 
initiatory  steps  have  been  taken.  They  need 
a  pretext  for  such  military  interference, 
and  hope  to  '  create  a  sufficient  one  by 
stimulating  crime  and  outrage,  and  then 
publishing  throughout  the  country,  the 
most  alarming,  extravagant  and  exciting 
accounts  of  the  same,  and  asserting  the 
pretended  inability  of  thecourts  to  bring 
offenders  to  justice.  This  work  has  been 
begun  already,  and  every  radical  official, 
both  State  and  Federal,  who  will  consent' to 
lend  himself  to  so  base  a  purpose,  will  con- 
tribute his  effort  in  that  respect.  Already 
we  find  officers  in  the  Internal  Revenue 
service  as  well  as  State  officers,  making 
reports  of  the  most  extravagant  char- 
acter, of  crimes  and  outrages  and  their 
inability  to  execute  their  offices  without 
the  aid  of  military  force.  The  manifest 
purpose  of  all  this  is  to  prepare  the  pre- 
text for  inaugurating  a  reign  of  military 
rule  and  terror  and  by  such  means  thwart 
and  stifle  the  popular  will.  They  must 
have  a  pretext— they  can  in  no  other  way 
create  one.  The  imputatioits  made  by 
the  Radical  leaders  above  referred  to, 
against  the  white  people, — that  they  are 


hostile  to  the  colored  race  and  the  federal 
government,  and  that  they,  or  considerable 
numbers  of  them,  endorse  or  connive  at 
crime  and  outrage,  we  know  to  be  shame- 
fully and  wickedly  false  and  groundless— 
nevertheless  they  are  made  and  for  the 
sinister  purposes  already  indicated. 

We  sincerely  trust  the  people  of  all 
classes  and  parties  everywhere  will  disap- 
point their  hopes — that  peace  and  good 
order  will  prevail  in  every  section  of  the 
State.  Crime  of  all  kinds  is  wrong — to  I  e 
deprecated  and  denounced,  and  its  authors 
punished  according  to  the  laws  of  the  land 
but  crime  perpetrated  under  circumstances 
of  terror  and  by  persons  in  disguise  is 
doubly  to  be  condemned,  and  it  is  the  im- 
perative-,duty  of  every  good  man  to  be 
specially  active  in  bringing  such  oifcnders 
to  justice;  and  punishment — and  particu- 
larly at  this  time,  let  every  one  feel  called 
upon  to,  be  careful  to  see  that  such  offen- 
ders are  brought  before  the  Courts,  to  the 
end  they  may  be  punished,  and  further, 
that  the  country  may  see  who  they  are. 
If  the  Courts  and  their  officers  will  not  do 
their  duty  vigilantly,  let  every  citizen 
trouble  himself  to  expose  every  such  re- 
fusal or  neglect  of  duty.  We  are  confi- 
dent that  the  Courts  and  prosecuting 
officers  have  not  made  any  active  or  reason- 


able effort  to  ascertain  secret  offenders. 
Let  them  double  their  diligence,  and 
where  they  are  incompetent,  let  special 
ones  be  employed.  Notwithstanding  the 
clamor  raised  just  before  the  last  election, 
and  the  pretended  military  effort  to  bring 
alleged  offenders  to  justice,  not  one,  so  far 
as  we  have  learned,  has  been  brought  be- 
fore the  Courts.  The  Governor  took  and 
has  taken  no  steps  to  order  Courts  of  Oyer 
and  Terminer,  and  the  pretended  zeal  of 
executive  and  judicial  officers  in  behalf  ot 
law  and  order  and  the  weak  and  helpless, 
passed  off  with  the  excitement  of  the  elec- 
tion. 

K?e  trust  the  ppople  will  carefully  ab- 
stain from  all  violence  and  make  extraor- 
dinary effort  to  preserve  perfect  peace,,  or- 
der and  harmony,  while  they  make  a 
mighty  effort  to  remove  the  curse  and 
blast  that  now  darken  their  hopes  and  de- 
stroy their  substance. 

Thomas  Bragg,  Chairman, 

A.  S.  Merrimon, 

M.  A.  Bledsoe, 

J.  Q.  DeCarteret, 

J.  H.  Moore, 

C.  M.  Busbee, 

J.  J.  LrrciiFORD, 

R.  H.  Battle. 


CONSTITUTIONALITY  OF  THE  CONVENTION  ACT. 


OPINION    OF    HON.    B.    F.    MOORE. 


Bdbert  P.  Waring,  Esq.: 

I  have  received  yours  requesting  my 
opinion  upon  the  queslion,  whether  the 
people  can  have  the  rightful  power  to  as- 
semble in  convention  and  alter  their  con- 
stitution, unless  such  convention  shall  be 
called  (according  to  the  provisions  in 
article  XIII  ot  the  state  constitution)  by 
the  general  assembly,  and  then  "  by  the 
concurrence  of  two-thirds  of  all  the  mem- 
bers of  each  house  ?" 

My  opinion  upon  the  same  point  has 
been  requested  by  many  others  of  my  fel 
low-citizens. 

Under  such  circumstances,  and  in  view 
of  a  matter  so  deeply  involving  the  great 
political  rights  of  the  people,  I  feel  that  it 
would  be  a  default  of  duty  should  I  with- 
hold any  information  I  may  possess  upon 
a  subject  so  interesting  to  the  public. 

The  conclusions  which  I  have  formed 
upon  this  subject  result  from  an  unde- 
viating  "recurrence"  to  the  fundamental 
"principles"  of  our  government,  which 
place  all  power  in  the  people  of  the  state, 
subject  only  to  those  restraints  pat  upon 
that  power  by  the  constitution  and  laws 
of  the  United  States. 

Under  the  present  form  of  our  state 
government  I  hold,  with  the  "Declaration 
of  Rights,"  "  that  all  political  power  is 
vested  in  and  derived  from  the  people ;" 
that  "  all  government,  of  right,  originates 
from  the  people,  and  is  founded  upon  their 
will  only ;"  that  "  the  people  of  the  state 
have  the  inherent,  sole,  and  exclusive  right 
of  regulating  the  internal  government  and 
police  thereof,  and  of  altering  and  abol- 
ishing their  constitution  and  form  of  gov- 
ernment ;"  and  that  "  every  such  right 
should  be  exercised  in  pursuance  of  law, 
and  consistently  with  the  constitution  of 
the  United  States." 

Acknowledging  the  existence  of  these 
fundamental  principles,  in  the  fullest  lati- 


tude consistent  with  their  reasonable  con- 
struction, I  shall  proceed  to  apply  them 
in  solving  the  question  under  considera- 
tion. 

All  laws,  made  for  the  government  of 
the  people  of  the  state,  are  properly  di- 
vided into  two  great  classes :  1.  Those 
which  are  made  by  the  people  in  their  pri- 
mary capacity,  while  acting  for  themselves 
through  unrestrained  agents,  and  repre- 
senting the  people  as  fully  as  the  people 
could  represent  themselves  were  they  per- 
sonally present  and  acting.  Such  of  this 
class  of  laws  as  are  not  subjected  to  repeal 
or  modification  by  the  general  assembly 
constitute  what  is  termed  the  constitution, 
or  fixed  laws,  that  is,  laws  fixed  until  they 
are  annulled  or  modified  by  a  power  as 
supreme  as  the  power  which  made  them, 
namely,  the  people  themselves,  acting  in 
their  primary  capacity.  2.  Those  laws 
which  are  made  by  the  people,  through 
their  representatives  acting  for  them  under, 
and  in  subordination  to,  the  constitution 
or  fixed  laws ;  these  constitute  what  are 
usually  termed  laws.  They  are  repealable 
by  the  same  authority  which  made  them ; 
and  it  is  out  of  the  power  of  that  author- 
ity to  remove  such  laws  beyond  the  reach 
of  that  authority,  because  the  same  power 
which  makes  a  law  can  unmake  it. 

The  constitution  or  fixed  law,  is  a  letter 
both  of  authority  and  command  from 
the  people  to  their  agents — the  members 
of  the  general  assembly.  By  this  letter 
they  are  empowered  and  instructed  in  their 
action.  This  letter  is  ever-speaking  and 
addressing  itself  to  the  agents  appointed 
by  and  under  its  provisions ;  and,  under 
the  theory  of  our  state  government,  is  at 
all  times  proclaiming  the  will  of  the 
people, — not  the  people  only  who  made  it 
years  or  ages  bygone,  but  the  existing  pres- 
ent people.  It  is  this  fundamental  princi- 
ple which  inspires  the  fixed  law  with  life 


— -present  life.  If  I  am  asked  what  reason 
J  have  for  this  assertion,  I  answer  in  the 
language  of  section  3,  of  the  Declaration 
of  Rights,  "  that  the  people  of  the  state 
have  the  inherent,  sole,  and  exclusive 
right  to  alter  and  abolish  their  constitu- 
tion and  form  of  government."  And  I 
say,  that  though  this  constitution  was 
made  by  a  generation  of  people  who  ex- 
isted when  it  was  made,  and  that  genera- 
tion has  passed  away  and  another  succeed- 
ed, still  the  constitution  has  been  neither 
abolished  nor  altered  ;  therefore,  the  pre- 
sumption exists,  copclusively,  that  it  is  as 
much  the  will  of  the  present  generation 
of  the  people  as  it  was  of  that  generation 
of  people  who  made  it.  Every  rational 
mind  assents  to  the  correctness  of  this 
conclusion.  But  how  can  this  be  true,  if 
a  majority  of  the  present  people  cannot 
assemble  and  alter  a  constitution  which  a 
majority  of  the  people  of  a  past  genera- 
tion assembled  and  made  ?  Is  not  the  es- 
tablishment of  a  constitution  a  political 
power,  and  is  not  all  such  p^wer  vested 
as  fully  in  the  present  generation  as  it  was 
in  the  past  ?  Is  not  the  will  of  the  people 
as  sacred  now  as  it'  was  a  year  ago  ? 

To  this  it  is  answered,  that  this  propos- 
ition is  theoretically  true,  and  cannot  be 
questioned  in  the  abstract,  but  that  those 
people,  who,  in  a  generation  bygone,  as- 
serted these  golden  truths  as  the  rights  of 
man  and  gifts  of  God,  in  order  to  protect 
the  fixed  law,  which  they  then  made,  and 
these  very  rights  and  gifts,  from  the  rash 
hands  of  all  future  generations  of  the 
people,  inserted  in  that  very  fixed  law  a 
provision,  whereby  were  cut  off  and  pro- 
hibited all  means  for  ascertaining  whether 
"  the  people  of  the  state  would  exercise 
their  sole,  exclusive  and  inherent  right  of 
altering  their  constitution, "  and  thus  en 
joy  the  benefit  of  these  sacred  rights^ 
They  made  it  (says  this  answer,)  a  part  of 
the  fixed  law,  that  "710  canvention  of  the 
people  shall  be  called  by  the  general  assem- 
bly unless  by  the  concurrence  of  two-thirds 
of  all  the  members  of  each  house  of  the 
general  assembly.''''  Therefore,  (concludes 
this  answer,)  it  is  clear  that  the  voice  of 
the  people  is  forever  hushed,  and  they  are 
forbidden  to  exercise  their  inherent  right, 
unless  eighty  members  of  One  house,  con- 
sisting of  120  persons,  and  thirty-four 
members  of  the  other  house  consisting'  of 
50  persons,  shall  allow  them — the  people— 


the  privilege  of  altering  the  law  fixed  by 
a  bygone  age  of  men. 

It  is  equally  manifest,  and  is  an  unde- 
niable sequence  of  this  doctrine,  that,  if  a 
convention  should  ever  become  as  much 
pleased  with  its  fixed  laws,  as  was  Lycur- 
gus  with  the  institutions  framed  by  him 
for  Sparta,  such  convention  would  abso- 
lutely prohibit  all  changes  in  their  self  es- 
teemed work.*  Perhaps,  to  diminish  the 
foice  of  the  absurd  conflict  with  the  pro- 
claimed rights  of  the  people,  which  such  a 
provision  would  present,  they  might  pro- 
vide that  no  convention  should  be  called 
unless  nine  tenths  of  all  the  members  of 
each  house  should  concur.  Or,  if  the  ques- 
tion were  left  to  a  vote  of  the  people,  they 
might  provide,  that  there  should  be  no 
election  of  delegates,  unless  nine  tenths  of 
the  registered  voters  should  assent  thereto. 
Each  of  such  provisions  is  defended  by 
those,  who  maintain,  that  no  convention 
can  be  called  otherwise  than  by  the  mode 
specified  in  article  13  of  the  constitution. 
All  such  provisions  are  alike  in  principle, 
though  different  in  words ;  and  are  equal- 
ly at  variance  with  the  great  political 
truth  that  the  people  possess  the  inherent 
right  to  alter  their  constitution. 

I  can  see  no  end  to  the  intolerable  griev- 
ances, which  may  continually  spring  up 
in  new  states  with  small  populations, 
forming  their  first  constitutions  with  such 
restraints  imposed  on  the  will  of  a  majori- 
ty of  the  people;  and  equally  grievous 
even  to  densely  populated  states,  must 
be  such  restraints  in  the  progresses  of  the 
age. 

With  all  proper  respect  for  the  opinions 
of  those  who  may  differ  from  mine,  I  am 
constrained  to  say,  that  the  absurdities 
involved  in  such  a  construction  with  the 
'.'uamntees  of  a  government  according  to 
the  popular  will,  so  often  repeated  in  the 
constitution,    forbid    me    to    entertain  a 


*Lycurgus,  ruler  of  Sparta,  charmed 
with  the  beauty  and  greatness  of  his  political 
establishment,  became  desirous  to  make  it  im- 
mortal and  deliver  it  down  to  the  latest  times. 
For  this  purpose  he  assembled  the  people  and 
took  an  oath  of  all  the  officers  and  citizens, 
that  they  would  not  alter,  but  would  abide  by 
the  existing  establishment  till  he  should  return 
from  Delphi,  whither  he  was,then  going,  with 
the  secret  purpose  of  never  returning.  He 
never  returned,  but  the  citizens  disregarded 
the  unjust  imposition  No  sane  man  ever 
questioned  their  right  to  do  so. 


doubt,  that  the  privilege  of  the  people  to 
exercise  their  inherent  right  of  self  govern- 
ment remains  unaffected  by  the  first  sec- 
tion of  article  13  of  the  state  constitution. 
I  do  not  intend  to  assert  that  this  section 
of  that  article  is  inoperative.  I  shall  turn 
to  its  consideration  presently.  But  I  free- 
ly declare  it  as  my  opinion,  deliberately 
and  much  considered,  that  even  if  that  ar- 
ticle had  been  so  worded  as  to  remove  all 
cavil  as  to  its  meaning,  by  declaring  in 
express  words,  that  "  the  people  should 
not  assemble  in  convention  otherwise  than  as 
provided  in  that  section,"  the  provision 
would  have  been  destitute  of  all  obliga- 
tion. For,  I  maintain,  as  a  cardinal  prin- 
ciple in  the  broad  self  government  by  uni- 
versal suffrage,  where  each  provision  in 
the  fixed  law  owes  its  original  existence 
to  a  majority,  that  every  such  provision 
must  depend,  for  the  continuation  of  its 
existence,  upon  the  same  will  which  ere 
ated  it,  namely  the  will  of  the  present 
people,  that  that  will  cannot  be  crushed 
or  impaired  in  its  strength  by  the  past 
creating  will ;  that  the  work  of  the  first 
will  is  as  much  subject  to  change 
by  the  second  will,  as  it  was  to 
be  moulded  by  the  first  will  ; 
and  that  every  device,  by  the  creating 
will,  to  dethrone  the  future  will  of  the 
people,  or  smother  its  existence,  or  com- 
mand it  into  silence,  is  a  fraud  on  the  in- 
herent right  of  the  people  to  have  their 
will,  and  to  live  under  a  government  of 
their  will.  To  hold  otherwise,  is  to  main- 
tain that  the  people  may  be  defrauded  of 
the  right  of  self-government,  under  the 
pretence  of  protecting  constitutions  from 
changes  by  the  popular  will ! ! ! 

It  has  been  suggested  that  the  conven- 
tion of  1868  has  conferred  on  the  legisla- 
ture no  express  power  to  provide  ways 
and  means  for  ascertaining  the  will  of  the 
people  to  have  a  convention.  If  that  be 
so,  still,  if  the  people  have  an  inlierent 
right  to  a  privilege,  guaranteed  by  the  con- 
stitution, there  must  be  some  mode  of  im- 
parting practical  life  to  that  privilege  and 
securing  its  fruits.  In  every  code  of  laws, 
where  a  right  is  proclaimed  aud  no  special 
remedy  is  provided,  one  is  allowed  by  im- 
plication, and  that  one  is  selected  which 
is  most  adaptable  to  secure  the  privilege. 
Every  person  concedes  that  the  general 
assembly  is  the  fittest,  and,  indeed,  the 
only  fit,  instrument  for  that  purpose.    In 


all  cases  of  similar  defects  (if  defects  they 
may  be  called)  in  the  constitutions  of  the 
states,  the  duty  of  making  provision  to 
ascertain  the  popular  will  has  been  as- 
sumed by  that  branch  of  national  power, 
without  question,  in  this  state,  of  its  au- 
thority in  such  cases,  until  recently.  Cer- 
tainly, if  in  the  absence  of  express  provis- 
ion, there  be  any  authority  for  such  pur- 
pose, none  can  be  so  appropriate  as  the 
legislative  agents  of  the  people  themselves. 
This  power  of  the  legislature,  to  provide 
the  means  whereby  their  will  may  be 
known,  has  been  recognized  in  this  state 
as  well  by  the  legislature  of  1834,  as  by 
the'  convention  which  assembled  in  1835 
and  formed  what  is  now  article  13  of  the 
present  constitution.  I  need  no  higher 
authority  for  the  existence  of  such  power, 
as  it  stood  undisputed  and  unquestioned 
by  such  jurists  as  Judges  Daniel,  Toomer 
and  Seawell,  than  the  openly  declared 
opinion,  in  their  piesence,  of  William 
Gaston.  In  the  case  of  Luther  vs.  Borden 
7  How-  1,  the  power  is  conceded  to  the 
legislature  by  the  bar  and  *  the  court. 
But  it  is  my  opinion  that  the  existence  of 
such  legislative  power,  in  this  state,  may 
well  be  asserted  under  section  3  of  the 
Declaration  of  Rights,  a  part  of  the  con- 
stitution itself.  This  section,  after  declar- 
ing that  the  people  of  the  state  have  an 
inherent  right,  to  alter  their  constitution 
and  form,  of  rovernment,  expressly  pro- 
vides that  "sum  right  should  be  exercised 
in  pursuance  o"law  and  consistently  with 
the  constitutit  a  of  the  United  States." 

"In  pursuance  of  law.''''  What  law? 
Why,  such  law  as  might  be  provided  for 
that  purpose  by  the  legislative  authority. 
If  the  framers'  had  intended  to  limit"  the 
power  of  altering  it  to  the  specific  mode 
prescribed  in  article  13  of  that  instrument, 
the  form  of  expression  in  section  3  of  the 
Declaration  of  Rights  would  manifestly 
have  been  "  in  pursuance  of  the  consti  - 
tution  of  the  state,  and  consistently 
with  the  constitution  of  the  United 
States!"  The  use  of  the  term  law  ig- 
nores the  idea  that  the  mode  of  altera- 
tion was.  intended  to  be  confined  to  the 
mode  specified  by  the  constitution.  Loose, 
as  in  many  respects,  is  the  language  of 
that  instrument,  it  can  hardly  be  supposed, 
that  while  its  framers  were  so  careful  in 
guarding  against  a  collision  with  the  con- 
stitution of  the  United  State,  they  were  so 


grossly  remiss  in  overlooking  a  collision 
with  the  constitution  of  the  state, — (even 
deserting  its  universal  appellation  of  con- 
stitution and  calling  it  a  taw,) — if  they  in- 
tended to  set  up  that  instrument  as  the 
only  guide  in  any  proposed  change  of  its 
provisions. 

Doubtless,  the  framers  of  this  section 
(3)  (which  was  unknown  to  the  con- 
stitution before  1868,)  had  in  mind  the 
celebrated  unlawful  attempt  made  in 
1841-2  by  Dorr,  and  others,  citizens  of 
Rhode  Island,  to  change  the  form  of  gov- 
ernment in  that  state,  without  any  law 
passed  for  that  purpose.  They  undertook 
to  do  this,  through  the  instrumentality  of 
mere  gatherings  of  the  people,  whether 
qualified  voters  or  not,  assembled  at  their 
call,  and  voting  without  any  law  passed 
for  that  purpose.  This  mode  was  declared 
illegal  and  revolutionary,  and  was  decided 
to  be  an  usurpation  of  power,  by  the  courts 
both  of  the  state  and  the  United  States. 
After  this  revolutionary  plan  for  altering  the 
constitution  was  defeated,  the  legislature  of 
Rhode  Island,  in  obedience  to  the  voice  of 
a  decided  popular  will,  passed  a  law  pro- 
viding a  mode  for  the  people  to  call  a 
convention.  And  "  in  pursuance  of  law" 
they  did  call  a  convention,  which  reform- 
ed their  constitution  to  suit  the  popular 
will.  The  Rhode  Island  case  illustrates 
fully  the  nature  of  the  right«of  the  people 
to  change  their  constitution  '  in  pursuance 
of  law  and  consistently  with  the  constitu- 
tion of  the  United  States." 
'^s  In  my  judgment  I  might  i.ere  rest  the 
"argument  in  support  of  the  power  of  the 
legislature  to  provide  the  means,  whereby 
the  people  may  express  their  will  in  regard 
to  the  proposed  changes  of  the  constitu- 
tion ;  but  the  question  has  been  asked,  Of 
what  use,  then,  is  section  1  of  article  13  ? 
The  same  question  was  presented  in  the 
convention  of  1835,  and  was  answered  by 
Mr.  Gaston,  in  substance,  That  the  authori- 
ty conferred  in  that  section  was  not  in- 
tended to  limit  the  power  of  the  people  to 
call  a  convention,  by  their  votes  in  pur- 
suance of  law  passed  for  that  purpose,  but 
to  allow  the  legislature,  too,  to  call  a  con- 
vention, whenever  two-thirds  of  all  the 
members  of  each  house  should  concur  so  to 
do.  It  was  then  deemed  true,  and  we 
may  assume  it  to  be  true  at  all  times,  that 
whenever  eighty  members  of  a  house  of 
one  hundred  and  twenty,  and  thirty-four 


members  of  a  house  of  fifty,  all  elected 
upon  the  basis  of  numbers  and  fresh  from 
the  people,  shall  concur  in  voting  for  a 
convention  of  the  people,  the  vote  will  be 
in  full  accordance  with  the  popular  will. 
With  the  overwhelming  proof  of  this  will 
which,  such  majorities  of  the  representa- 
tives of  the  people  would  exhibit,  it 
would  be,  manifestly,  a  superfluous  and 
needless  work  to  ask  of  the  people  whether 
they  wanted  a  convention.  Common  sense 
teaches  us  that  it  should  be  called  at  once 
by  the  people's  representatives. 

The  manifest  difference  between  the  two 
modes  is,  that  in  the  former  case  the  peo- 
ple determine  for  themselves,  as  they  have 
a  right  to  do  even  in  doubtful  cases,  their 
will  whether  they  desire  a  convention. 
In  the  latter  case  that  will  is  presumed  to 
have  been  fully  determined  by  the  election 
of  members ;  and  the  legislature  proclaims 
it  and  proceeds  at  once  to  provide  the 
means  of  giving  it  effect. 

In  this  light  section  1  of  article  13  was 
viewed  by  the  convention  of  1835.  If,  as 
argued  by  some,  this  section  was  intended 
to  deprive  80,000  voters  of  the  privilege 
of  changing  their  constitution  because 
other  40,000  of  their  political  equals  would 
not  consent,  then  the  government  is  an 
oligarchy,  both  in  form  and  practice,  and 
the  fervid  declarations  scattered  through- 
out the  Declaration  of  Rights,  "that  all 
men  are  created  equal ;"  that  "  all  political 
power  is  vested  in  and  derived  from  the 
people;"  that  "all  government  is  founded 
upon  their  will  only ;"  that  "  they  have 
the  inherent,  sole,  and  exclusive  right  of 
regulating  the  government ;"  "  of  altering 
and  abolishing  their  constitution  and  form 
of  government ;"  that  "  all  elections  ought 
to  be  free ;"  that  "  no  property  qualifica- 
tion ought  to  affect  the  right  to  vote  or 
hold  office ;"  all — all  of  them  are  but 
beautiful  flowers,  strewn  by  the  hand  of 
the  artful  demagogue,  over  the  tomb  of 
popular  rights. 

Although  it  be  true,  in  contemplation 
of  the  constitution,  that  the  members  of 
each  house  are  presumed  to  represent  the 
views  of  their  constituents,  it  would  be 
unwise  to  conclude,  therefore,  that  when- 
ever a  bare  majority  of  the  representatives 
may  desire  a  convention,  the  people  desire 
one  also,  and  to  call  it  without  consulting 
them ;  because  experience  has  often  taught 
us  that  a  majority  of  party  representatives 


10 


may  be  elected  by  a  minority  of  the  whole 
number  of  voters.  Hence  it  would  be  un- 
wise to  allow  a  mere  majority  of  the  mem- 
bers of  a  legislature — or  even  concurrent 
mere  majorities  of  both  houses — to  call  a 
convention  ;  but,  certainly,  the  spirit  of 
the  present  constitution  forbids  all  idea 
that  any  grievance  can  result  from  the  peo- 
ple's being  allowed  to  vote  whether  they 
desire  a  convention.  For,  if  the  repre- 
sentatives should,  at  any  time,  be  remiss  in 
preparing  the  means  for  exercising  this 
right,  the  people  are  invited  to  "assemble 
together  to  consult  for  their  common  good, 
to  instruct  their  representatives  and  apply 
to  the  legislature  for  a  redress  of  griev- 
ances ;"  and  we  are,  moreover,  assured  that 
to  aid  the  people  in  this,  "  elections  should 
be  often  held."  Conventions  authorized 
by  law,  and  instructed  by  the  law,  under 
which  they  assemble  to  make  specific 
changes  in  the  constitution,  have  a  notable 
and  recognized  precedent  in  this  state. 
It  is  wrong  to  suppose  that  any  true  lover 
of  liberty  will  depart  from  such  instruc- 
tions and  seek  to  make  any  fixed  law  with- 
out the  full  popular  sanction.  Mr.  Gas- 
ton, in  the  convention  of  1835,  expresses 
my  views,  in  the  following  language  : 

"According  to  the  theory  of  our  govern- 
ment, all  political  power  was  derived  from 
the  people,  and  when  they  choose  to  make 
a  grant  of  power,  that  they  might  make 
a  plenary  or  a  restricted  grant,  might  give 


it  all  or  in  part.  The  Legislature  by  thei{| 
act  proposed  to  the  people  a  convention,!;';: 
with  powers,  restrictions  and  limitations  j!!j 
set  forth  in  the  act.  It  was  as  it  came!|'ji 
from  the  legislature,  no  more  than  a  prop- jiip 
osition  or  recommendation.  It  must  orig-{|ij! 
inate  somewhere,  and  with  nobody  could  jjj'j 
it  have  originated  with  so  much  propriety!! 
as  in  that  which  represented  the  peopleijlj! 
for  legislative  purposes.  The  proposition  jjjji' 
having  been  sanctioned,  it  be:ame  an  act  ||»{i 
of  the  people ;  but  it  has  been  sanctioned  ji}'| 
precisely  as  it  was  proposed.  Such  a  con-|i{ii 
vention  as  is  proposed  in  the  act  of  as-lliji 
sembly,  and  no  other,  has  been  called  ;  andjil;! 
therefore,  that  act,  so  sanctioned,  must  bei|!l< 
regarded  as  our  power  of  attorney.  If  we'ijjj 
transcend  the  limits  or  refuse  obedience  toji!ji 
the  conditions  therein  provided,  we  arejjjij 
not  the  convention  called  by  the  people,  ijjjj 
but  a  self-constituted  body." 

In  conclusion,  I  desire  to  say,  that  I  cor-  jjjj 
dially  endorse  the  provision  in  our  consti- |}{ 
tution,  that  the  right  to  change  the  con-  m 
stitution  "should  be  exercised  in  pursu-Jiji 
ance  of  law ;"  and  as  the  legislative  power  jijjj 
is  vested,  in  the  general  assembly,  that  [|| 
body  alone  has  the  unquestioned  power  tojlli! 
make  a  law,  whereby  the  people  may  ex-  j]|i| 
ercise  their  ':  inherent,  sole,  and  exclusive  jijij 
right  to  alter  and  abolish  their  constitu-  i|j 
tion." 

I  am,  respectfully,  yours, 

B.  F.  MOORE. 


